In the last decade, states have legalized marijuana for medical and recreational use. As states legalize medical marijuana, employers must ask whether their workplace policies, especially their drug-free workplace policies, comply with these new laws. A drug-free workplace prohibits “the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance.” 1 Although some states allow employers to terminate employees who legally use medical marijuana, other states prohibit employers, with certain exceptions, from firing employees solely because they use medical marijuana. 2
This article is intended for private practices that have drug-free workplace policies and follow state law. 3
State laws are inconsistent about employee protections if employees have registered in the state’s medical marijuana program. Some states prohibit employers from firing employees solely for being a holder of a medical marijuana card. 4 Other states allow employers to terminate employees for being medical marijuana users. 5 State laws are also inconsistent on marijuana use outside of work. Some states allow employers to discipline employees for off-duty use, while other states prohibit such discipline. 6
Even where employees have these protections, state laws do not require employers to accommodate medical marijuana use in the workplace. 7 In addition, state marijuana laws allow employers to discipline their employees for being under the influence of marijuana at work or if marijuana use would lead to professional malpractice, including medical malpractice. 8
Testing for marijuana can be a sensitive area for employers. Even though an employee may not be under the influence of marijuana, the employee can still have a positive drug test because marijuana can stay in the employee’s system for weeks. 9 As a result, more states are prohibiting employers from terminating employees solely for a positive drug test and are requiring a second positive drug test before termination. 10
State laws are inconsistent on drug testing. Although some states allow random drug testing, most states allow drug testing when an employer has a reasonable suspicion that an employee is under the influence at the workplace. 11 Some states are now prohibiting drug testing as a condition of employment and provide protections for prospective applicants for a positive drug test. 12 Even though states impose certain requirements on employers related to drug testing, employers can still have and enforce drug-free workplace policies under these laws. 13
State drug-testing laws, however, do not provide these protections for employees in “safety-sensitive” positions. 14 “Safety-sensitive” positions are ones where people perform decisions and tasks that can directly affect the health and safety of others such as health care professionals. 15 For “safety-sensitive” positions, most states allow employers to conduct routine drug tests and to discipline employees for a positive drug test. 16
With states legalizing marijuana, medical practices should review their workplace policies to ensure compliance with these new laws. Even though state medical marijuana and drug testing laws may seem inconsistent, they do generally allow practices to create actionable policies for safety-sensitive positions, including health care professionals. Below are a few recommendations to help ensure employers are not taking adverse action against their employees:
1. Be clear in policies that on-the-job use of marijuana will not be tolerated. States are consistent that employers can discipline employees, regardless of the position, for being under the influence of marijuana at work. Having clear language in the workplace policy about no use of marijuana on premises or during working hours will help notify employees of what is, and is not, tolerated during work hours.
2. Before considering termination, work with employees on possible accommodations. Even though state laws consistently do not require employers to accommodate medical marijuana use in the workplace, employers may have to accommodate off-duty use of medical marijuana or the underlying disability. 17 Providing other reasonable accommodations for employees who use medical marijuana will help prevent possible disability discrimination against employees and ensure compliance with state law and the federal Americans with Disabilities Act. 18
3. Review and update job descriptions for “safety-sensitive” positions. Although states are beginning to protect employees from adverse actions for being a medical marijuana user, states do not provide these protections for people in “safety-sensitive” positions. 19 Routinely updating job descriptions for these positions will help employers identify what tasks in a particular position are “safety-sensitive” and justify possible disciplinary actions that they take against employees in these positions.
4. State procedures for a failed drug test. Drug testing policies should explicitly state the policies and procedures for what happens when an employee fails a drug test. Implementing protocols for when an employee fails a drug test will help maintain consistency in employer decisions and prevent possible adverse action against employees, especially if the positive drug test is from marijuana use that is for a valid medical reason.
5. Require supervisor and employee training on detecting drug use. States consistently allow employers to conduct drug tests on employees when a reasonable suspicion exists that an employee was under the influence of drugs at work, and that impairment affected the employee’s job performance. 20 Training supervisors and employees on how to detect and respond to drug use will help employers establish a reasonable suspicion for performing a drug test and ensure compliance with drug-testing laws.
1 What Is a Drug-Free Workplace?, Nat’l Drug-Free Workplace All., https://www.ndwa.org/drug-free-workplace/ (last visited July 9, 2021).
2 Compare, e.g., Conn. Gen. Stat . § 21a408p (2012) (amended 2021) (prohibiting employers from terminating employees for being registered medical marijuana users), with Ohio Rev. Code Ann. § 3796.28(A)(2) (West 2021) (allowing employers to terminate employees for using medical marijuana).
3 This article is not intended for government health care organizations that receive grants or contracts from the federal government because these organizations would still follow the federal Drug-Free Workplace Act of 1988. 41 U.S.C. § 8102 (requiring federal contractors and agencies to have drug-free workplaces to receive federal grants and contracts). These organizations would also have to follow the federal Controlled Substances Act, which makes marijuana illegal under federal law. 21 U.S.C. § 812; Robert S. Goldsmith et al., Medical Marijuana in the Workplace: Challenges and Management Options for Occupational Physicians, 57 J . Occupational & Env’t Med . 518, 519 (2015). Accepting Medicare or Medicaid alone does not make health care organizations subject to federal drug-free workplace laws. See Lori A. Bowman & Jonathan S. Longino, Taking the High Road-The Healthcare Provider’s Duty to Accommodate Employees’ Medical Marijuana Use, 5 J. Health & Life Scis. L. 34, 43 (2012).
4 See, e.g., 35 Pa. Cons. Stat . § 10231.2103(b) (2021) (prohibiting employers from terminating or refusing to hire employers solely for being certified medical marijuana users).
5 See, e.g., Mich. Comp. Laws § 333.26427(c)(2) (2021) (not requiring employers to accommodate marijuana use in the workplace or employees who work while under the influence of marijuana).
6 Compare Roe v. Teletech Customer Care Mgmt. (Colo.) LLC, 257 P.3d 586 (Wash. 2011) (en banc) (finding Washington’s medical marijuana law did not require employer to accommodate employee’s off-duty use of medical marijuana), with Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E.3d 37 (Mass. 2017) (finding employer had a duty to accommodate employee’s medical marijuana use and could not discipline employee for off-duty marijuana use).
7 See, e.g., Me. Stat . tit. 22, §§ 2426, 2430C(3) (2020) (not requiring employers to accommodate medical marijuana use in workplace, even though employers cannot terminate employees for solely being a registered medical marijuana user).
8 See, e.g., Minn. Stat . § 152.23(a)(1) (2021) (allowing employers to discipline employees who are under the influence of medical marijuana where doing so would be professional malpractice).
10 See, e.g., Conn. Gen. Stat . § 3151u(a) (2021) (prohibiting employers from terminating employees solely for a positive drug test and allowing termination only after a second positive drug test).
11 E.g., 28 R.I. Gen. Laws § 286.51(a) (2021) (allowing employers to conduct drug testing where they have “reasonable grounds,” based on documented observations and employee’s job performance, that employee is under the influence or impaired while working).
12 E.g., Nev. Rev. Stat . § 613.132(1) (2021) (prohibiting employers from denying employment to prospective employees solely for a positive drug test for marijuana).
13 E.g., 410 Ill. Comp. Stat . 130/50(b) (2021) (allowing employers to have drug-free workplace policies).
14 E.g., N.M. Stat . Ann. § 262B9 (2021) (prohibiting employers from taking adverse action against employees, except if the employee is in a “safety-sensitive position”).
16 Safety-Sensitive Carve-Outs by State, DISA Glob. Sols. , https://disa.com/news/safety-sensitive-carve-outs-by-state (last updated May 7, 2019).
17 See Timothy A. Hilton & Jenna Brofsky, Guidelines for Employers as More States Legalize Marijuana, Husch Blackwell LLP (Nov. 10, 2020), https://www.huschblackwell.com/newsandinsights/guidelines-for-employers-as-more-states-legalize-marijuana .
19 DISA, supra note 16.
Raj Shah is the Senior Regulatory Attorney with the Institute at MagMutual where he provides consultation to MagMutual policyholders regarding federal and state regulatory matters in the health care arena and prepares risk management education materials on best practices regarding health care compliance. He is a former Vice-Chair at AHLA and a graduate of the AHLA Leadership Development Program.
Baker Swain is the Risk Intern with the Institute at MagMutual where he advises policyholders on health care regulatory and compliance matters. He is a third-year law student at Georgia State University. After graduation, Baker intends to practice health care regulatory law.
